Amicus Curiae Brief — Williams v. Overton (Nos. 05-7142, 05-7058)

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o Nos. 05-7058, ®

D

SEP 18 2006

IN THE

Supreme Court of the United

OF THE CLERK

SUPREME COURT, U.S.

LORENZO L. JONES,

Petitioner,

v.

BARBARA BOCK, Warden, ef ai.,

| Respondents.

TIMOTHY WILLIAMS,

Petitioner,

v,

WILLIAM OVERTON, ef ai, .

Respondents.

On WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

—— ——[—[—£—[—[—[— i ——— ——_ _ _ _ ————[—[_£_{_§—————==

BrigF OF THE STATES OF NEw YORK, ALABAMA, ALASKA, ARKANSAS,

CALIFORNIA, COLORADO, DELAWARE, FLoripA, Hawan, IpAHo, ILLINOIS,

MAryLaAnb, Missouri, Montana, NEBRASKA, Nevapa, NortH DakKoTA,

Onto, OKLAHOMA, OREGON, COMMONWEALTH OF PENNSYLVANIA, RHODE

IsLAND, SoutH CAROLINA, SoutTH DAKOTA, TENNESSEE, TEXAS, UTAH,

COMMONWEALTH OF VIRGINIA, WASHINGTON, WEST VIRGINIA, WISCONSIN,

WYOMING, AND THE DISTRICT OF COLUMBIA AS AMICI CURIAE

IN SUPPORT OF THE RESPONDENTS

CalrrLin J. HALLIGAN* Euiot Sprrzer

Solicitor General Attorney General of the

DANIEL SMIRLOCK State of New York

Deputy Solicitor General 120 Broadway

ied WE Miia New York, NY 10271

: 212) 416-8016

Senior Counsel (212) 3

RosBert M. GOLDFARB pte ees Curiae

Martin A. Hotvet

Assistant Solicitors General * Counsel of Record

(Additional Counsel Listed on Signature Page)

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TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ............ ii

STATEMENT OF INTEREST OF

PRE SIE 85 66S ORCS sae iwede: ]

SUMMARY OF ARGUMENT ................. 3

ARGUMENT

I. The Plain Language of 42 U.S.C. § 1997e(a)

Requires Total Exhaustion of Administrative

Remedies Before An “Action” May Be

| REE RES Pe ost tre | pe Pee - 4

II. A Total Exhaustion Rule Furthers The

Policies Underlying The PLRA And

SD <5 ins CNRS ER a BOK hbk CAE R ll

ce Be ND het re en ere ar a Pee 16 .

TABLE OF CITED AUTHORITIES

_ CASES

Artuz v. Bennett,

Se SP POD cece os beK CAS Kens

Booth v. Churner,

ee ee} eee oe ee ee ee

City of Rancho Palos Verdes v. Abrams,

POS Us BES GI) 5 + Secnnindho nts eis ciseie

Cooter & Gell v. Hartmax Corp.,

ke Re Te. er Se eee Pree

Duncan v. Walker,

S99 108. 107 COONS «oe

Hallstrom v. Tillamook County,

GIS UB. BD IGG) oo vc cnsccceccsccces

Lira v. Herrara,

427 F.3d 1164 (9th Cir. 2005) ...........

McNeil v. United States,

SOB U.S. IDO CIGGS) oi ve ccvwiccssscacass

Neitzke v. Williams,

490 U.S. S19 (IGG) on icc cc ccc cscceces

Page —

12

13

14

11

a

iii

Cited Authorities

Ortiz v. McBride,

380 F.3d 649 (2d Cir. 2004), cert. denied,

543 U.S. 1187 (2005) .......-- 22 e eee,

Porter v. Nussle,

534 US. S16 C002). os oo iv ccc aeccceess

Preiser v. Rodriguez,

411 U.S. 475 (1973) 2. ec ccccpecccccons

Rhines v. Weber,

544 U.S. 269 (2005) ...... 2c eee ee eee ees

Rose v. Lundy,

455 U.S. 509 (1982) ......... cee ee eee

United States v. Wells,

Pa hs A CLT) vine 6.55650 Vining b's 8.8.4

Woodford v. Ngo,

126 S. Ce. 2378 (2006)... cece ecscenese

iv

Cited Authorities

Page

FEDERAL STATUTES

28 U.S.C.

Bh > 0) IPERS rae Aare eR AR eee Pes 13

MET tkne's bon. 40.6:0ek Cre udaed aden Te 10

DSR BMAD 66 bdo vids welds Sbeedeeabeeha 10

42 U.S.C.

RSE w > >) 44.0i sheen wean oe Lecce aaet 3

DS PPO: sb hb ORs ee REM eed + 0d CORR Roda bs passim

SS Sa bieee sb ticdaaw bbe koa Coswakeet 4,6

§ 1997e(c)(1) ............26..- Pe AIGA A TO 6,8

OT MILED §..s'a bh ob 6.5 6 Mold S bc bb wee eee De 6,7,8

BRS ee SAN ee 9

Civil Rights of Institutionalized Persons Act,

27: PR BUR SSRs ghia Fens bi wees ow hed ad 10

FEDERAL RULES AND REGULATIONS

Fed. R. Civ. P

DS Shwe eRe hE Laa Mee has Vekdeue ies 4

SD icin bard VKEAS S bad heb 4S CU hOLS Sa be se 4

STATE STATUTES

N.Y. C.P.L.R.

ED Scie an Cuno nate wenwes Lick cae oe 13

MISCELLANEOUS

Black’s Law Dictionary (Sth ed. 1979) .......... 4

l

STATEMENT OF INTEREST OF AMICI CURIAE

The Prison Litigation Reform Act of 1995 provides that

“{nJo action shall be brought with respect to prison conditions

...+ until such administrative remedies as are available are

exhausted.” Prison Litigation Reform Act of 1995 (“PLRA”),

Pub. L. No. 104-134, § 803(d), 110 Stat. 1321-66, 1321-71

(1996), codified at 42 U.S.C. § 1997e(a). This provision

replaced an eartier one under which administrative

exhaustion “was in large part discretionary,” Porter v. Nussle,

534 U.S. 516, 523 (2002), and which permitted a district

court to stay a prisoner’s action while adrninistrative remedies

were exhausted. Pursuant to § 1997e(a)’s “invigorated”

exhaustion requirement, all available administrative remedies

must now be exhausted before a prisoner can commence a

federal action. Jd. at 524. Among the issues presented in these

appeals is whether the PLRA prescribes a “total exhaustion”

rule, such that an action must be dismissed if the prisoner

has not exhausted administrative remedies on all claims

asserted in the complaint.

The amici States and their correctional officials are

inundated with thousands of prisoner lawsuits annually. From

2000 through 2005, prisoner civil rights and prison conditions

_ cases comprised between 8.3% and 9.8% of new filings in

federal district courts, “or on average about one new prisoner

case every other week for each of the nearly 1000 active and

senior district judges across the country.” Woodford v. Ngo,

126 S. Ct. 2378, 2388 n.4 (2006).

Correct resolution of this case will diminish the burdens

imposed by this litigation in two ways. First, interpreting

§ 1997e(a) as imposing a total exhaustion requirement will

maximize the incentive for prisoners to make prompt and

2

full use of prison grievance procedures and exhaust

administrative remedies on all of their claims before joining

them in an action. Prisoner grievances play an important role in

prison administration by providing timely feedback to prison

officials about problems that arise in correctional facilities.

In individual cases, grievance procedures enable prison

administrators to take prompt remedial action that may satisfy

the prisoner and obviate the need for litigation. Such procedures

also allow prison officials to monitor trends in prisoner

complaints before unwise institutional policies or patterns of

inappropriate conduct by correctional officers lead to frustration

among inmates, potentially triggering prisoner unrest. Grievance

procedures also allow state officials to filter out meritless claims

and to create factual records of disputes that may eventually be

litigated. By strongly encouraging prisoners to grieve all of their

claims internally before commencing an action, the total

exhaustion rule will further all these interests.

~ Second, a total exhaustion rule will help achieve the PLRA’s

important aim of increasing the quality of prisoner complaints,

thereby decreasing the burden of prisoner litigation on the

judiciary as well as on state correctional officials and their

attomeys. Prisoners often file inartfully drafted complaints that

include a number of claims, related and unrelated, spanning

multiple dates and against multiple parties. If the total exhaustion .

rule imposed by § 1997e(a) is not applied, nothing deters

prisoners from indiscriminately loading complaints with

unexhausted as well as exhausted claims, leaving it to the district

court, with the help of the defendants, to sort them out. Proper

application of the total exhaustion rule will strongly discourage

prisoners from including unexhausted claims in a complaint,

promoting judicial economy and conserving the limited

resources that the amici States expend in defending against these

suits in the manner Congress intended.

3

SUMMARY OF ARGUMENT

Section 1997e(a) of the PLRA mandates that “[n]Jo action

shall be brought with respect to prison conditions .. . until

such administrative remedies as are available are exhausted.”

The plain language of this provision prohibits the

commencement of an “action” with respect to prison

conditions unless there has been total exhaustion of available

administrative remedies on all claims. The general rule is

that an action barred from commencement by the terms of a

statute must be dismissed. Section 1997e provides for no

exception to this general rule. Thus, § 1997e(a) prescribes a

“total exhaustion” requirement, such that a district court must

dismiss without prejudice a prisoner’s action where

administrative remedies have not been exhausted on all

claims.

This rule markedly furthers the PLRA’s goals of

decreasing the quantity and increasing the quality of prisoner

complaints. It maximizes the incentive for prisoners to grieve

all of their claims promptly before joining them in an action,

giving correction officials the earliest opportunity to resolve

all of the prisoner’s complaints. Thus, corrective action on

meritorious claims may eliminate litigation altogether, while

frivolous claims may be weeded out. Prompt and complete

exhaustion of all claims also facilitates the creation of a more

complete administrative record to assist the courts in

resolving those claims that are ultimately litigated.

A “total exhaustion” rule also strongly discourages the

indiscriminate pleading of unexhausted claims. As a result,

courts and defendants are spared the time-consuming effort

of ferreting out the unexhausted claims in often inartfully

4

drafted complaints, attention that can be better devoted to

resolving exhausted claims in properly pleaded complaints. The

rule may also reduce piecemeal litigation by encouraging

prisoners to exhaust all claims and include them in one action

with only one filing fee.

ARGUMENT

I. The Plain Language Of 42 U.S.C. § 1997e(a) Requires

Total Exhaustion Of Administrative Remedies Before

An “Action” May Be “Brought.”

The language of § 1997e(a) is plain and it is mandatory. It

provides that “(njo action shall be brought with respect to prison

conditions ... until such administrative remedies as are available

are exhausted.” By using the mandatory word “ ” and the

term “action” instead of “claim,” and barring an action where

all available administrative “remedies” — in the plural — have

not been exhausted, Congress clearly expressed its intent that a

prisoner must exhaust administrative remedies on all claims

before commencing a suit in federal court. See Woodford, 126

S. Ct. at 2391 (“saying that a party may not sue in federal court

until the party first pursues all available avenues of

administrative review necessarily means that, if the party never

pursues all available avenues of administrative review, the

person will never be able to sue in federal court”) (emphasis in

the original). This construction is confirmed by § 1997e(c),

which distinguishes between an “action” and a “claim,”

indicating that Congress intended the two terms to be construed

differently in accordance with their usual definitions. See Fed.

R. Civ. P. 3 (“A civil action is commenced by filing a complaint

with the court.”); Fed. R. Civ. P. 18(a) (party may join in

a pleading “as many claims” as the party has against an

opposing party); Black’s Law Dictionary, at 26 (Sth ed. 1979)

(term action “in its usual legal sense means a suit brought in a

court”); id. at 224 (defining “claim” as “[c]ause of action”);

5

see also Artuz v. Bennett, 531 U.S. 4, 9-10 (2000) (relying on

different meanings of terms “application” and “claim’”).'

Petitioners’ rejoinder to the plain text is simply that

§ 1997e(a) does not direct a district court to dismiss a non-

compliant action. See Br. 65; see also Ortiz v. McBride, 380

F.3d 649, 657 (2d Cir. 2004), cert. denied, 543 U.S. 1187 (2005);

Lira v. Herrara, 427 F.3d 1164, 1171 (9th Cir. 2005). But no

such instruction from Congress was required. This Court has

instructed that “[aJs a general mule, if an action is barred by the

terms of a statute, it must be dismissed.” Hallstrom v. Tillamook

County, 493 U.S. 20, 31 (1989); accord McNeil v. United States,

508 U.S. 106, 111, 113 (1993) (“The command that an ‘action

shall not be instituted ...’ is unambiguous” and “[bJecause

petitioner failed to heed that clear statutory command, the

District Court properly dismissed his suit.”). The logic

that an action it prohibits from being brought at all can continue

in any fashion. This rule should have even greater force in the

context of a statute designed to decrease the quantity and increase

the quality of prisoner lawsuits. Particularly because this Court

“generally ‘presumes that Congress expects its statutes to be

read in conformity with the Court’s precedents,’” Porter, 534

U.S. at 528 (quoting United States v. Wells, 519 U.S. 482, 495

1. Even the Second and Ninth Circuits, which have rejected the

total exhaustion rule, concede that the literal terms of § 1997e(a) bar

the commencement of an action with a “mixed” complaint alleging both

exhausted and unexhausted claims. See Ortiz v. McBride, 380 F.3d 649,

657 (2d Cir. 2004) (“Section 1997e(a) clearly instructs that an action

- - «Containing exhausted and unexhausted claims should not have been

‘brought’”), cert. denied, 543 U.S. 1187 (2005); Lira v. Herrara, 427

F.3d 1164, 1170-71 (9th Cir. 2005) (“The text of § 1997e(a) specifies a

rule regarding the instigation of suit — that ‘no action shall be brought’

unless there has been exhaustion” and “[t}hat requirement necessarily

applies to all claims alleged”) (emphasis in the original).

6

(1997)), it was wholly unnecessary for Congress to have

included in § 1997e(a) an explicit mandate that mixed actions

In any event, dismissal for noncompliance with

§ 1997e(a) is comfortably included within § 1997e(c)’s dismissal

provisions. Section 1997e(c)(1) meen dismissal of “frivolous”

actions. It provides that

[t]he court shall on its own motion or on the motion

of a party dismiss any action brought with respect

to prison conditions ... if the court is satisfied that

the action is frivolous, malicious, fails to state a claim

upon which relief can be granted, or seeks monetary

relief from a defendant who is immune from such

relief.

42 U.S.C. § 1997e(c)(1). Because a mixed action is barred from

commencement by § 1997e(a), a mixed action is legally

frivolous within the meaning of § 1997e(c)(1). See Neitzke v.

Williams, 490 U.S. 319, 325 (1989) (defining “frivolous

lacking “an arguable basis either in law or im fact’’). In addition,

if a statute bars commencement of an action, that action

necessarily does not state any claim upon which relief can be

granted by the court.

What § 1997e(c)’s dismissal provisions nowhere authorize

is the procedure sanctioned by the Second and Ninth Circuits,

permitting a district court to dismiss without prejudice the

unexhausted claims in an improperly commenced mixed action.

Section 1997e(c)(2), addressing dismissal of claims, provides

that

{iJn the event that a claim is, on its face, frivolous,

malicious, fails to state a claim upon which relief

can be granted, or seeks monetary relief from a

+

7

defendant who is immune from such relief, the

court may dismiss the underlying claim without

first requiring the exhaustion of administrative

remedies.

42 U.S.C. § 1997e(c)(2). This provision authorizes dismissal

of facially meritless claims with prejudice, “thus allowing a

district court to dismiss plainly meritless claims without first

addressing what may be a much more complex question,

namely, whether the prisoner did in fact properly exhaust

available administrative remedies.” Woodford, 126 S. Ct. at

2392.2 Section 1997e(c)(2) does not, however, authorize a

court to prune potentially meritorious unexhausted claims

from the complaint and dismiss them without prejudice,

permitting the exhausted claims to go forward.

Contrary to petitioners’ suggestion (Br. 68), the total

exhaustion rule does not render § 1997e(c)(2) superfluous.

As this Court noted in Woodford, § 1997e(c)(2) “serves a

useful function by making it clear that the PLRA exhaustion

requirement is not jurisdictional.” 126 S. Ct. at 2392.

Moreover, it is simply not true that “‘[t}here would be little

point in providing for the dismissal of some nonexhausted

claims on the merits [under § 1997e(c)(2)] if the remainder

of the action would then have to be dismissed, although

exhausted, because of the failure to exhaust the dismissed

2. While this provision could result in the survival of an action

even though a dismissed frivolous claim might also have been shown

to have been unexhausted, Congress chose not to require unnecessary

expenditure of judicial resources where facial dismissal was the most

efficient course of action. Thus, for example, a prisoner’s claim that

his rights were violated by being served creamy peanut butter instead

of the chunky variety can be dismissed as frivolous without

determining whether it was exhausted.

8

claims’” (Pet. Br. 68) (quoting Lira, 427 F.3d at 1172).

A dismissal for lack of total exhaustion required by

§ 1997e(a) will, as a general rule, be without prejudice. The

prisoner may attempt to commence a new action asserting

both the previously-exhausted claims and any unexhausted

claims that have been exhausted in the interim. Pursuant to

§ 1997e(c)(2), the court may, however, dismiss a particular

claim with prejudice without first inquiring whether the claim

was exhausted. The dismissal of that claim will be subject

to res judicata, barring the prisoner from ever returning to

court with the claim. Thus, § 1997e(c)(2) is not superfluous;

it complements § 1997e(a)’s total exhaustion rule by

permitting the court to dismiss a patently meritless claim on

the merits, never to be resurrected, regardless of exhaustion.

Petitioners also argue (Br. 68) that if the term “action”

as used in § 1997e(a) is interpreted to demand dismissal of a

mixed complaint, then § 1997e(c)(1), which uses the same

term, would also require dismissal of the entire complaint if

any claim is frivolous, malicious, fails to state a claim upon

which relief can be granted, or seeks monetary relief from

an immune defendant, thus rendering § 1997e(c)(2)

superfluous. This argument misreads § 1997e(c)(1), which

mandates dismissal of the action if the court “is satisfied

that the action” is frivolous, malicious, fails to state a claim

upon which relief can be granted or seeks damages from an

immune defendant. Thus, with respect to the underlying

merits of the claims asserted, the provision requires dismissal

of the action only if ali claims fail on these grounds. With

respect to exhaustion, § 1997e(a) likewise refers to an

“action” as a bundle of claims in a lawsuit and bars an action

until all available administrative remedies have been

9

exhausted. If this statutory precondition to commencement

is not satisfied, dismissal of the action is required.’

A further question is whether § 1997e(a) requires that a

mixed action be dismissed without an opportunity for the

prisoner to amend the complaint. Petitioners note (Br. 76)

that in the habeas corpus context, where a total exhaustion

rule applies, petitioners are permitted to resubmit a petition

with the unexhausted claims deleted. See Rose v. Lundy, 455

U.S. 509, 520-22 (1982) (plurality opinion) (“a district court

must dismiss habeas petitions containing both unexhausted

and exhausted claims,” but the prisoner can “amend the

petition to delete the unexhausted claims”); see also Rhines

v. Weber, 544 U.S. 269, 278 (2005). If the district court finds

good cause for the petitioner’s failure to exhaust all claims,

the court may, under limited circumstances, employ a “stay-

and-abeyance” procedure, staying the habeas proceeding and

holding it in abeyance while the petitioner returns to state

court to exhaust his unexhausted claims. Rhines, 544 U.S. at

277.

This analogy, however, is inapt in light of § 1997e(a)’s

text and legislative history. Section 1997e(a) was substituted

for a predecessor provision that authorized district courts to

Stay the prisoner’s action “for a period not to exceed 180

3. Petitioners’ reference to § 1997e(e) does not assist them

either. The instant cases do not present the question whether an action

must be dismissed because a prisoner pleads a claim “for mental or

emotional injury suffered while in custody without a prior showing

of physical injury,” 42 U.S.C. § 1997e(e), despite the pleading of

other viable claims. In any event, § 1997e(e)’s heading indicates

~ that it is a “[l]imitation on recovery” that does not implicate the

same underlying policy concerns as the total exhaustion requirement

of § 1997e(a) (see Point II, infra).

10

days” while the prisoner exhausted administrative remedies.

Civil Rights of Institutionalized Persons Act, § 7, 94 Stat.

352; see Woodford, 126 S. Ct. at 2382; Porter, 534 U.S. at

523. Thus, any argument that a stay for this purpose continues

to be available is untenable.

Moreover, Congress included a different prohibition in

§ 1997e(a) than it did in 28 U.S.C. § 2254. Section 2254

does not explicitly bar the commencement of a habeas corpus

proceeding with a mixed petition. It provides that “[a]n

application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall

not be granted unless it appears that ... the applicant has

exhausted the remedies available in the courts of the State.”

28 U.S.C. § 2254(b)(1)(A) (emphasis added); see Rhines,

544 U.S. at 273 (“we held in Rose v. Lundy... that federal

district courts may not adjudicate mixed petitions for habeas

corpus”) (emphasis added). The habeas statute thus leaves

room for an amendment of the petition or stay-and-abeyance

so that the application is adjudicated only on exhausted

claims. }

In § 1997e(a), however, Congress used language that

unambiguously precludes the commencement of an action

with a mixed complaint. There is no reason that Congress

would have barred commencement of a mixed action if it

had intended that, once commenced, the infirmity simply

could be cured by the prisoner or the court. Accordingly, this

text should be given legal effect, and dismissal of a

statutorily-barred action is thus the proper disposition.

>

11

II. A Total Exhaustion Rule Furthers The Policies

Underlying The PLRA And § 1997e(a).

While the plain language of § 1997e(a) should be

dispositive, the policies underlying the PLRA’s enactment

likewise weigh heavily in favor of a total exhaustion

requirement. This Court has stressed “the PLRA’s dominant

concern to promote administrative redress, filter out

groundless claims, and foster better prepared litigation of

claims aired in court.” Porter, 534 U.S. at 528. “Beyond

doubt, Congress enacted § 1997e(a) to reduce the quantity

and improve the quality of prisoner suits; to this purpose,

Congress afforded corrections officials time and opportunity

to address complaints internally before allowing the initiation

of a federal case.” Jd. at 524-25.

A total exhaustion rule serves all of these goals. It

promotes administrative redress by maximizing the incentive

for prisoners to make prompt and full use of prison grievance

procedures and exhaust administrative remedies on all claims

before joining them in an action, giving prison Officials an

earlier opportunity to resolve all of the prisoner’s complaints.

See Woodford, 126 S. Ct. at 2387-88 (adopting construction

of . 1997e(a) that “gives prisoners an effective incentive to

make full use of the prison grievance process and accordingly

provides prisons with a fair opportunity to correct their own

errors”); cf. Duncan v. Walker, 533 U.S. 167, 178-80 (2001)

(adopting construction of habeas corpus statute that provides

a “powerful incentive” to exhaust -available remedies and

rejecting interpretation that “would do far less to encourage

exhaustion”). The rule thus promotes federal-state comity,

which “has as much relevance in areas of particular state

administrative concern as it does where state judicial action

is being attacked.” Preiser v. Rodriguez, 411 U.S. 475, 491

12

(1973); see Woodford, 126 S. Ct. at 2388 (“This is particularly

important in relation to state corrections systems because it

is ‘difficult to imagine an activity in which a State has a

stronger interest, or one that is more intricately bound up

with state laws, regulations, and procedures, than the

administration of its prisons.””) @uoting Preiser, 411 U.S.

at 491-92).

As a result of this incentive, the-total exhaustion rule

will inevitably reduce the quantity and improve the quality

of prisoner suits. In many cases, corrective action taken by

prison officials on a prisoner’s grievance that would

otherwise remain unexhausted “might improve prison

administration and satisfy the inmate,” Porter, 534 U.S. at

525, so that the claim is never brought to federal court.

Alternatively, administrative resolution of the claim may

convince the prisoner of its lack of merit so that it does not

become part of future litigation. See id. (“In other instances,

the internal review might ‘filter out some frivolous claims.’”’)

(quoting Booth v. Churner, 532 U.S. 731, 737 (2001)). When

a prisoner has multiple claims that are all properly grieved,

favorable resolution of one or more of them may persuade

the prisoner to abandon the others and not to commence a

federal action at all. See Woodford, 126 S. Ct. at 2388

(“Proper exhaustion reduces the quantity of prisoner suits

because some prisoners are successful in the administrative

process, and others are persuaded by the proceedings not to

file an action in federal court.”). The prompt and complete

exhaustion encouraged by the mule also facilitates the creation

of a more accurate and complete administrative record to

assist the courts in resolving claims ultimately litigated. See

id. (“proper exhaustion often results in the creation of an

administrative record that is helpful to the court” and “[wjhen

a grievance is filed shortly after the event giving rise to the

13

grievance, witnesses can be identified and questioned while

memories are still fresh, and evidence can be gathered and

preserved”).

Additionally, the total exhaustion rule improves the

quality of prisoner suits by strongly discouraging the

inclusion of unexhausted claims in a complaint. See Porter,

534 U.S. at 528 (dominant concern of PLRA to, inter alia,

“foster better prepared litigation of claims aired in court”).

Without the rule, district courts and defendants are left to

ferret out the unexhausted claims through time-consuming

motion practice. Permitting district courts simply to dismiss

unexhausted claims results in a toothless scheme in which

the prisoner’s noncompliance with § 1997e(a) carries no

sanction at all, providing no deterrence to the pleading of

unexhausted claims. See Woodford, 126 S. Ct. at 2388

(declining to adopt interpretation of § 1997e(a) that “carries

no significant sanction” for noncompliance).

While petitioners note that the prisoner may just file

another action with only the exhausted claims, the prisoner

will be assessed another filing fee, see 28 U.S.C.

§ 1915(b)(1), providing a financial disincentive to including

the unexhausted claims in the first action. Statutes of

limitations may provide an added incentive for prisoners

not to allege unexhausted claims and have an action

dismissed on this basis.* Thus, the total exhaustion rule will

4. The statute of limitations for section 1983 claims “is

generally the applicable state-law period for personal-injury torts,”

City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 123 n.5 (2005),

and state tolling provisions may permit a prisoner to recommence

an action on exhausted claims dismissed for lack of total exhaustion,

notwithstanding that the statute of limitations has run in the interim.

See, e.g., N.Y. C.P.L.R. 205(a). :

14

meaningfully improve the quality of prisoner complaints, as

Congress intended, by forcing a prisoner to think twice before

pleading unexhausted claims. See Cooter & Gell v. Hartmax

Corp., 496 U.S. 384, 398 (1990) (“The filing of complaints,

papers, or other motions without taking the necessary care

in their preparation is a separate abuse of the judicial

system’’). The time that district courts and defendants would

spend culling unexhausted claims from mixed complaints

can be better spent on resolving exhausted claims in properly

pleaded, potentially meritorious complaints.

The total exhaustion rule promotes judicial economy in

other ways as well. Because an action must be dismissed

once the court identifies one unexhausted claim, the court

and defendants are spared the time-consuming effort of

determining whether every other claim in the complaint has

been exhausted. In addition, the rule may serve to discourage

piecemeal litigation, an especially important objective when

claims are factually or legally related. Knowing that a mixed

action will be dismissed, the prisoner is strongly encouraged

to exhaust all claims initially and include them in one action

with only one filing fee to be paid. See Rose, 455 U.S. at 520

(“Rather than increasing the burden on federal courts, strict

enforcement of the exhaustion requirement will encourage

habeas petitioners to exhaust all of their claims in state court

and to present the federal court with a single habeas

petition.”). By mandating that “[nJo action shall be brought”

until all administrative remedies have been exhausted,

Congress intended to avoid the inefficiency that would result

if a prisoner can litigate the exhausted claims in a mixed

complaint and then bring related claims if and when they

have been exhausted. See id. (“To the extent that the

exhaustion requirement reduces piecemeal litigation, both

the courts and the prisoners should benefit, for as a result

15

the district court will be more likely to review all of the

prisoner’s claims in a single proceeding, thus providing for

a more focused and thorough review.”). Thus, “[tJhe interest

in orderly administration of this body of litigation is best

served by adherence to the straightforward statutory

command.” McNeil, 508 U.S. at 112.

Finally, petitioners’ view that the total exhaustion rule

is too harsh for prisoners was rejected by Congress when it

enacted § 1997e(a). The total exhaustion rule provides

“a simple and clear instruction to potential litigants,” Rose,

455 U.S. at 520: before you commence an action in federal

court, make sure that you have administratively exhausted

all of your claims in the prison system. Even pro se prisoners

should “be able to master this straightforward exhaustion

requirement,” id., that they are already acquainted with from

the habeas corpus context. See Woodford, 126 S. Ct. at 2393

(rejecting argument that requiring proper exhaustion is

unduly harsh for prisoners, in light of the “informality and

relative simplicity of prison grievance systems” and- “the fact

that prisoners who litigate in federal court generally proceed

pro se and are forced to comply with numerous unforgiving

deadlines and other procedural requirements”’).°

5. Notably, pro se prisoner complaint forms provided by district

courts to prisoners place them on notice of this requirement by

directing the prisoner to allege the manner in which he grieved each |

claim and the result. See, e.g., United States District Court for the

Western District of New York Prisoner Complaint Form, at http://

www.nywd.uscourts.gov/document/PrisonerComplaintForm.pdf;

United States District Court for the Northern District of New York

Inmate Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, at http:/

/www.nynd.uscourts.gov/pdf/inmatciv.pdf.

CONCLUSION

For the foregoing reasons, this Court should hold that

the PLRA prescribes a total exhaustion rule that requires

a district court to dismiss a prisoner’s action when the

complaint contains any unexhausted claims.

CAITLIN J. HALLIGAN*

Solicitor General

DANIEL SMIRLOCK

Deputy Solicitor General

Peter H. Scuirr

Senior Counsel

Roserr M. GOLDFARB

Maatin A. Horvet

Assistant Solicitors General

Respectfully submitted,

Exior Sprrzer

Attorney General of the

State of New York

120 Broadway

New York, NY 10271

(212) 416-8016

Attorney for Amicus Curiae

State of New York

* Counsel of Record

Troy KING

Attorney General

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Third Floor

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Attorney General

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Attorney General

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Bit Lockyer

Attorney General

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JouHn W. SUTHERS

Attorney General

State of Colorado

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Cari. C. DANBERG

Attorney General

State of Delaware

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Rosertr J. SPAGNOLETTI

Attorney General

District of Columbia

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Washington, D.C. 20001

Cuarces J. Crist, Jr.

Attorney General

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Attorney General Attorney General

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Attorney General

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Attorney General

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